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ANALYSIS OF MARCH 2, 2012 SUPREME COURT OPINIONS

[Posted March 2, 2012] Opinion day has arrived. The Supreme Court hands us twenty published opinions this morning, plus one published order. I got a good night’s sleep last night, and I’ve got a fresh pot of coffee on; let’s dig in and see what the justices have wrought.

Intragovernmental relations
Okay; I just made up that word in order to properly classify the biggest opinion of the day, Cuccinelli v. U.Va. We can have a proper debate someday over whether there can ever be “relations” within a single unit, such as the word intragovernmental implies, but not today; I’m a tad busy.

If you’ve followed the news at all, you know the background story. Virginia’s Attorney General decided to investigate a former U.Va. professor who had concluded that global warming was real and was caused by human activity. The AG sent the university a criminal investigative demand for the professor’s documents, so he could determine whether the professor misused government grant money, under the Fraud Against Taxpayers Act. The University asked a trial court to dismiss the CID on a couple of grounds, and the court agreed with one of them, holding that the CIDs weren’t sufficiently detailed, and dismissing them without prejudice. The AG appealed and understandably got a writ.

Today the Supreme Court affirms, but without even addressing the AG’s assignment of error. That’s because it agrees with the university’s assignment of cross-error, contending that the school, as a state agency, isn’t a “person” upon whom a CID can be served. The majority notes that the CID statute is of general application, and those statutes don’t apply to the Commonwealth unless there’s a specific provision to that effect. The court thus affirms the judgment dismissing the CIDs, but unlike the trial court’s ruling, it dismisses the CIDs with prejudice. No level of detail in the demand can ever make the university a “person” in this context, so there’s no reason to allow the AG an opportunity to amend.

Justice McClanahan offers a concurrence/dissent. She agrees with the trial court on the outcome, but unlike the majority, she would find that the university is indeed a “person” for the purposes of the statute. She would dismiss the demand without prejudice and allow the AG another crack at the materials.

I got to watch the oral argument in this case back in January, and it was very interesting, even though the issues decided are hypertechnical. The politics of the global-warming debate never entered into the case, of course, since this was about how to interpret a statute that classifies persons.

Taxation
As long as we’re on the subject of government agencies, let’s take up City of Richmond v. SunTrust Bank, which addresses the taxation of real property owned as tenants in common. SunTrust co-owned two parcels in Richmond; its cotenant was the local redevelopment and housing authority. The two owners had executed an agreement that gave the bank the sole right to use the properties, free of any rent payment to the authority.

For years, the city had taxed the properties only in the proportion of the bank’s ownership, since the authority is plainly tax-exempt as a governmental unit. But presumably when it go a copy of the agreement between the two owners, the city revised its thinking, concluding that in effect, the bank was the sole owner. It thereupon revised its tax bills, hitting the bank with back taxes for three previous years, based on the entire value of the property, not merely the bank’s proportionate interest. In effect, the city taxed the bank for the portion of the property that was owned by the authority.

The bank asked a trial court to correct this assessment, and the court agreed. On appeal, the Supreme Court affirms, rejecting the city’s three arguments in turn. In essence, the city argued, this was a lease by the authority, to the bank, of the authority’s ownership interest in the property. No dice, the justices rule today; the bank didn’t assign error to the trial court’s ruling that this wasn’t a lease. (In truth, I seriously doubt that this procedural flaw was meaningful; I believe that the court would have affirmed this ruling, intriguing as it is, on the merits.) The court also declines to impose a public-purpose test on exemption from taxation. If the entity is tax-exempt, it doesn’t matter whether the property is used for a public purpose or not.

Sexually violent predators
The appellee inCommonwealth v. Blaxtonmusthave swallowed hard when, during the pendency of this appeal, the Supreme Court decided a case last year that rejected the ground upon which the trial court had granted him relief. Blaxton, having been classified as a sexually violent predator, was cleared by a trial judge for release to his mother’s home in Illinois. But with the release of Commonwealth v. Amerson last March, it became clear that release out-of-state was not an option under the SVPA.

He tried another tack, contending in the Supreme Court that he had also been convicted of another crime for which supervised release was available, and that one permitted foreign placement under an interstate compact to which Virginia subscribes. Although he didn’t make that argument below, the Supreme Court goes ahead and rules on it, instead of finding it to be procedurally barred (as it could well have done). The court decides today that the existence of another basis for release outside Virginia doesn’t supersede the SVPA’s restrictions as described in Amerson.

Torts
In terms of its impact on the day-to-day conduct of trials, Wakole v. Barber may well be the most significant tort case of the day. This is a fairly ordinary intersection-collision case in which a passenger was injured. She sued for $50,000 and during closing arguments, her lawyer was permitted, over a defense objection, to suggest to the jury certain amounts that the jury should award for each of the several elements listed in VMJI (Civil) 9.000.

Back in 1959, the Supreme Court held that a lawyer can’t suggest a mathematical formula to the jury for calculating damages. For example, asking the jury to award the plaintiff $X per day for pain and suffering is impermissible. Fast-forwarding to the 21st Century, the defendant here contended that the plaintiff’s request for things like past inconvenience ($5,000) and past pain ($20,000) violated this rule.

Today the Supreme Court affirms the trial court’s decision to permit this kind of argument, finding that the 1959 case was not controlling. The court acknowledges that counsel cannot give the jury a per-diem rate and ask it to apply that rate, since doing so would amount to testimony by the lawyer. But today’s majority finds that the lawyer didn’t do that in this case. The court rules that a plaintiff is allowed to ask the jury for a fixed amount for each category of damages.

In reaching this conclusion, the court notes that by statute, a plaintiff is permitted to inform the jury of the total amount sued for, so “there is no principled reason why a plaintiff should not be able to request a specific amount for each element of damages sought as long as there is evidence in the record to support each element of damages claimed . . . .” The court is careful to note that counsel may not make this argument “on a per diem or other fixed basis,” so the 1959 decision retains vitality.

Justice McClanahan dissents. She would apply the 1959 ruling to bar this kind of argument. To her, the statute that allows informing the jury of the amount sued for should not be expanded to permit requests for individual categories.

Askew v. Collins involves a defamation claim made against a former circuit-court judge. The plaintiff sued the judge and other defendants, including a newspaper, primarily for statements that appeared in a story that was published in the paper. The other defendants settled, and at a trial, the jury ruled that the judge had made only one of the several statements alleged by the plaintiff. The jury awarded the plaintiff $350,000 in damages.

The judge appealed, contending that the plaintiff had admitted in court that her damages sprung from the publication of the article, and the single statement on which the plaintiff had prevailed did not appear in the story. She alternatively sought an offset for the amount of the settlements with the other defendants.

The Supreme Court affirms the judgment today. It rules that since the statement was determined (without objection) by the trial court to have been defamatory per se, the jury was permitted to presume damages, starting with the first utterance of the statement. The judge argued in the Supreme Court that even with presumed damages, a plaintiff is still required to prove proximate causation, and here, the plaintiff’s testimony excluded that possibility. But the court rules today that a statement to reporters, even if not subsequently published in the newspaper, may be the basis for presumed damages.

The court also rejects the judge’s request for a credit in the amount of the other settlements, finding that the claims against the other defendants were for other statements, and thus not for “the same injury.”

Bing v. Haywood implicates the statute of limitations for an arrestee who claims that she was improperly subjected to a body-cavity search. The arrestee filed suit just short of two years after her arrest and search, but clearly within the two-year limitations period for personal actions generally. The defendants nevertheless filed a plea in bar, contending that the suit raised a claim relating to the conditions of confinement for someone in a state or local corrections facility, so the proper limitations period was one year.

The trial court agreed with the defendants and dismissed the suit. Today, the justices agree with the trial judge and affirm. This is an issue of first impression in this court, although some other caselaw comes close; the court discusses those and reasons that the arrestee was unquestionably confined in a local correctional facility, so the only remaining issue is whether the suit related to the conditions of that confinement. The court rules that it does, citing caselaw from the Supreme Court of the United States to the effect that it’s reasonable for corrections officials to search those brought within the walls of the jail.

Galumbeck v. Lopez is a tragic tale. A woman went to a cosmetic plastic surgeon for a “Mommy Makeover,” and wound up dying 36 hours later from respiratory problems. Her personal representative sued the plastic surgeon and the anesthesiologist, eventually nonsuiting the claim against the latter defendant. The case went to trial against the surgeon, and the heirs got a med-mal-cap judgment.

From an appellate perspective, this case serves as a stark warning against the common trial-court practice of conducting sidebar conferences out of the hearing of the court reporter. The court decides four issues today, and on multiple occasions, the doctor’s appeal fails because of an inadequate record. In one of these, the doctor’s lawyer, having lost an argument conducted off the record, sought to remedy the problem by dictating his arguments to the court reporter at the end of the day, after the judge and plaintiff’s counsel had left.

That’s not good enough, the court rules today. In order to preserve an issue for appellate review, the record has to show that the appellant presented the argument to the judge, to give the court an opportunity to rule on it intelligently. Here, the direct argument was off the record. The lawyer’s effort to complete the record fell short because there’s no way to know whether the arguments he dictated were the same ones he made to the judge. The dictated statement might have been sufficient if the plaintiff’s lawyer had been present, since an unchallenged avowal of counsel is adequate to protect the record. But the lawyer dictated his arguments to an audience of one – the reporter.

The court also rejects an allegation of juror misconduct, finding that the trial court was within its discretion to accept the juror’s explanation of what happened during the trial. It applies a well-established rule (introducing evidence of the same character as waiver) to reject a potentially troublesome issue for the plaintiff. Finally, it turns aside a challenge to the court’s ruling that the doctor could not use a document to refresh a witness’s recollection. The old saw goes that you can use anything, even a plate of fettuccine, to refresh recollection, so it looks like this might be a good argument. But the doctor inexplicably failed to proffer the excluded evidence into the record, so that issue, too, is waived.

In CLE presentations, I have described sidebar conferences in this way: “Have you ever seen an appellate lawyer cry? If you want to, watch him while he gets to the part of the trial transcript where the words, ‘Let’s go off the record’ appear.” I have recently described the word sidebar as the appellate equivalent of a four-letter Anglo-Saxon word. If you agree to go off the record, you do so at your peril.

Criminal law
As I was reading Burrell v. Commonwealth, from time to time I wondered who the actual winner was, even as it became plain how the court would rule. The procedural posture is a tad confusing, but I’ll try to spell it out in abbreviated fashion.

Burrell was indicted for rape, but reached an agreement with the prosecution to plead to attempted rape. The deal called for a curious provision: He would be sentenced to five years, with four suspended, and if he stayed out of trouble for five years of probation, the conviction would be reduced to a misdemeanor.

At this point, the often-sensible voice inside my head wondered how in the name of Hernandez the trial judge was gonna do that. A sentencing order is final, and I can’t imagine how a court could justify amending a charge after the defendant had served his time. But I’m getting ahead of my story.

As you might have imagined would happen, Burrell fell slightly short of five years of good behavior. He lasted all of six months before something he did inspired the issuance of a “major violation report,” which is probably something more serious than an overdue book from the prison library. The court issued a show-cause order, and at that hearing, Burrell did something I would never have expected: He asked the trial court to rule that its sentencing order was void ab initio.

The trial court didn’t accept this, but surprise! The Supreme Court does today. It rules that the trial judge had no authority to make such a creative sentencing provision, and it even rules that Burrell didn’t invite error by proposing such creativity. (If a trial court doesn’t have the power to do something, that authority can’t be conveyed by waiver or agreement of the parties.)

And now for the outcome, which made me wonder who had really won: The case is remanded for a new sentencing on the original charge. This means that Burrell is going to go back before the original judge, who will be at liberty to sentence the victorious defendant to any prison term he chooses, up to the statutory maximum, which is slightly more than one year. Based on the language in today’s opinion (“Burrell asks, as he did below, that the Court vacate the sentencing order. This Court will grant the relief requested.”), I believe that Justice Mims, who authors today’s opinion, shares my suspicion that this will prove to be a Pyrrhic victory for Burrell.

Very few judicial opinions are sufficient to get me up on a soapbox. Last year, the Supreme Court’s decision in Nelson v. Commonwealth did just that. In that case, the court held that a defendant, who was snoozing in a driver’s seat with the engine off but the radio playing, was “operating” the vehicle for DUI purposes. I noted that, as far as I could tell, this was the first Virginia decision, at least since Henry Ford invented the automobile, to find a defendant guilty of DUI when the engine was turned off.

Today, it happens again; the justices figuratively rub my nose in the dirt with Enriquez v. Commonwealth, which is almost a carbon-copy of Nelson. The only difference between the two was a subtle advantage for Enriquez. In Nelson, the key was in the ignition, turned to the “ON/ACC” position. When police found Enriquez snoozing peacefully, also listening to the soothing sounds of the radio, no one could recall what position the key was in. He seized upon that as a dispositive difference between his case and the unfortunate Nelson’s.

No luck; the court today affirms the conviction, ruling categorically that when the police find someone in this situation, it matters not what position the key is in, as long as it’s in the ignition. In that instance, the court rules, the defendant is “in actual physical control of” the car. The only issue left unaddressed by the court is whether a defendant can avoid conviction by sensibly removing the key from the ignition and placing it on the dashboard. Stay tuned for that one. I can say that I still think this decision is wrong, but I find myself slightly outvoted at the court on this issue, 7-0.

Incidentally, I’m confident that the author of today’s opinion, Senior Justice Carrico, never really intended to rub my nose in it; he’s a very gracious man who has always been kind to me. I’m also aware that Karl Benz actually invented the automobile; allow me a little literary license here, okay?

Civil and appellate procedure
We get the first Supreme Court interpretation of one of the new appellate rules today, in LaCava v. Commonwealth, which arrives after an abortive visit to the Court of Appeals. LaCava fell victim to that ruthless lawgiver, Murphy, in the trial court. She was convicted of embezzlement despite her lawyer’s best efforts. She then decided to appeal pro se.

Okay; we can all agree that doing anything pro se in a criminal case is a bad idea. But she seemed to do everything right, timely filing the notice of appeal and contacting the court reporter to order the trial transcript. The reporter told her, in good faith, that the clerk of court orders transcripts for pro se appeals. That’s true as far as it goes, but it only applies when the defendant was pro se in the trial court. This defendant had a lawyer, so the clerk didn’t order anything.

Some weeks later, the defendant wised up and hired appellate counsel. That lawyer discovered the transcript problem just barely too late to meet the 60-day deadline. But he quickly ordered it and filed it on the 65th day. He then filed (on the 88th day) a motion to extend the deadline. The rules state that such a motion has to be filed within 90 days, so he figured he got in under the wire.

He had a tough time scrounging up folks to agree with him on the court of Appeals. A panel of that court first rejected his motion because he hadn’t shown good cause why the motion couldn’t have been filed before the expiration of the 60th day. That means the transcript is out. The panel then ruled that without the transcript, LaCava couldn’t establish a basis for reversal, so it denied the petition for appeal.

Today’s opinion will rankle just a bit in the CAV. The Supreme Court first notes that while Part 5A of the rules relate to the Court of Appeals, they’re still the Supreme Court’s rules. (It says so right on the title page of Volume 11 of the Code.) The Commonwealth had asked the justices to defer to the CAV’s interpretation of its own rules, but the justices decline to do so. The court then reverses the CAV’s finding that LaCava hadn’t shown good cause for a late filing of the motion.

The rule, the court decides today, relates to a late filing of the transcript, not the motion: “Nothing in the Rule provides a basis for distinguishing such a motion filed on the first day after the entry of final judgment from a motion filed on the ninetieth day.” Accordingly, the court decides that the motion was timely filed, even if the transcript wasn’t.

So what happens next? If you guessed that the justices will send this case back to the Court of Appeals for adjudication of the motion on the merits, well . . . your choice finished a good, solid second place. Six of the justices go ahead and decide the merits of the motion, ruling that LaCava provided good cause for relief; the case is thus remanded to the Court of Appeals for evaluation of the appeal on the merits, with the transcript included. Justice McClanahan agrees with the decision on the interpretation of the rule, but she would remand for the CAV to make the judgment call in the first instance.

One last procedural point: In deciding the case, the court turns to its recent Landrum decision to evaluate whether the Court of Appeals abused its discretion in denying the motion. Taking one of the prongs outlined in Landrum, the court finds an abuse based on the premise that the Court of Appeals ”considered and gave significant weight to an irrelevant and improper factor,” namely, the now-discredited view that the motion has to be filed within 60 days.

In Bowman v. Concepcion, the court addresses a med-mal plaintiff’s effort to avoid the procedural bar of Code §8.01-275.1 and Rule 3:5. Those are the provisions that require a plaintiff to serve a defendant within one year of filing suit; unless she does so, or establishes that she was unable to do so despite due diligence, she can’t get judgment against the defendant.

There’s another statute that comes into play in this appeal – Code §8.01-20.1, which requires a med-mal plaintiff to have in hand, before serving a complaint, a certification from an expert witness, substantiating the claim.

The patient filed suit in February 2009. Exactly one year later, she showed up in court with a motion to extend the one-year deadline for good cause. At an ex parte hearing that day, a circuit-court judge granted her motion and gave her until July to effect service. She complied with this order by serving the doctor the next month.

The doctor moved to dismiss the complaint, explaining that he had been right there in his office the whole time (well, during office hours, anyway), so the plaintiff could not have used due diligence to serve him. At this point the plaintiff explained that she had no problem locating the doctor; her problem was that despite her best efforts, she couldn’t get the required certification within the one-year period. She argued that in med-mal cases, the due-diligence requirement should be extended to getting the certification in addition to the actual service requirement.

This, you must admit, is an interesting legal problem. The trial court eventually agreed with the doctor, holding that its original extension order was void (here was the first red flag for me when I read the procedural section of Senior Justice Koontz’s majority opinion), and deciding that the due-diligence exception didn’t apply to securing the certification. The suit was then dismissed under the statute and rule.

The Supreme Court today begins by noting that the 2010 order was voidable, not void, since the court had jurisdiction to enter it. Still, it was erroneous; the court notes that the exception in Rule 3:5 doesn’t authorize a court to prospectively extend the time for service. That provision can only be invoked retrospectively, to determine whether due diligence was in fact proved.

On the merits, the justices agree with the trial judge, so the judgment dismissing the action is affirmed. The court rules that applying the due-diligence exception to the process of securing the certification would give a plaintiff “a virtually unlimited time” to get an expert. That would defeat the purpose of the statute and rule, which is to see that suits are prosecuted expeditiously.

So what does a plaintiff do in a situation like this? Today’s opinion points out that there was one thing the plaintiff could have done to buy more time – she could have nonsuited, even after the expiration of the one year. The statute specifically authorizes that procedure, but the plaintiff didn’t take it – presumably because she had obtained a valid-looking order that seemed to give her the extra time she needed.

Justice Powell files a short concurrence in which she agrees with the holding, but argues that the original order was indeed void. She notes that the trial court’s authority to extend the time derives from statute, and courts are not authorized to depart from that statute, as the trial court did here. Justice McClanahan did not participate in the case.

The court today takes up certified questions of law in two appeals. The first is Casey v. Merck & Co., from the Second Circuit Court of Appeals. This appeal involves four Virginia patients who took Fosamax, a drug manufactured by Merck to treat bone conditions. They sued the manufacturer in New York federal court, but did so more than two years after their rights of action accrued.

Before these individual suits were filed, a class-action proceeding was initiated, also in federal court, in which the class was described as all patients who had taken Fosamax. That federal court denied class certification and dismissed the class-action suit shortly after these four suits were filed.

Since the individual suits were filed beyond the two-year statute of limitations, the remaining question is whether the pendency of the class-action suit tolled the statute of limitations, either equitably or by a specific tolling provision in the Code. The New York federal court ruled in favor of the manufacturer, and on appeal, the Second Circuit certified the matter to the Supreme Court of Virginia.

The Supreme Court today swats aside the equitable-tolling argument, noting that in Virginia, a plaintiff must strictly meet filing deadlines unless a statute provides relief. There is no equitable tolling in Virginia.

The court then rules that the pendency of a class-action suit, in which the Virginia plaintiffs are part of the described class but were not among the named plaintiffs, does not toll the running of the statute. That’s because the court requires identity of parties before Code §8.01-229(E)(1) kicks in. That statute allows tolling where one suit is pending and then ends without a decision on the merits; the pendency of that first suit doesn’t count against the statutory period. It might well have been different if these Virginia plaintiffs had been among the named plaintiffs in the class-action suit, but since they weren’t, Virginia’s tolling statute doesn’t help them.

Administrative law
In one sense, VCU v. Su is a procedural mess. The substantive issue is fairly simple: A Chinese national asked his college to afford him Virginia-resident status for tuition after he’d been here for a year. The university refused, finding that he hadn’t rebutted the presumption that his residence here was for nothing more than educational purposes. A circuit court disagreed and reversed the university, directing the school to give consideration to the resident-status request; the justices granted a writ.

The procedural mess comes from sorting out how to evaluate the standards of review at each stage. Fortunately, Justice Millette, writing for a unanimous court, does a good job of outlining the several steps involved.

As admin-lawyers know, when an agency makes a decision that has a factual component, that decision is normally afforded a great deal of judicial deference. The Supreme Court today finds that the circuit court didn’t do that; it purported to weigh the evidence itself and come to a different conclusion. Reviewing courts are charged to “determine whether the decision reached by the institution could reasonably be said, on the basis of the record, not to be arbitrary, capricious or otherwise contrary to law.” The justices rule today that the university was amply supported by the record when it concluded that the student was not a bona fide Virginia resident.

Early in today’s decision, the court issues an important clarification on the standard of review for its own decisionmaking. It holds that that standard is de novo, despite a couple of earlier opinions that had indicated that a plainly-wrong standard would apply, presumably coming from Code §8.01-680.

Insurance
So you can appreciate the issue in Christy v. Mercury Casualty Company, I invite you to read this policy provision from an employee’s personal motor vehicle policy. This provision deals with medical-expense benefits. The policy states that such coverage does not apply “to bodily injury sustained by any person to the extent that benefits therefore are in whole or in part payable under any [workers’] compensation law.” Got that?

Now, let’s go to the facts, most of which are undisputed. Christy was a police officer who was injured on the job while riding in a sheriff’s car. He incurred over $16,000 to treat a shoulder injury, but his Comp carrier agreed to pay less than $2,000. He sought coverage under his private policy for the unpaid portion, but the insurer refused to pay, citing the provision quoted above. I now invite you to go back and reread that excerpt, in light of these facts.

See the issue? The question here is whether the phrase, “to the extent” means that if he gets any Comp coverage at all, he gets no med-pay benefits. In the alternative, his med-pay benefits could be payable only “to the extent” (i.e., in the amount) that his bills weren’t paid by Workers’ Comp. That issue divides the court, 4-to-3. The majority (Senior Justice Koontz, joined by the chief justice and Justices Lemons and Goodwyn) sides with the insurer, holding that since at least some of the expenses were covered by Workers’ Comp, the insurer had no duty to pay under the exclusion.

The dissent (Justice Powell, joined by Justices Millette and Mims) calls this ruling harsh, which it undoubtedly is. In essence, the dissent’s complaint is that the majority has substituted the phrase in the event for to the extent. While those two phrases can be read the same way, they are different, in exactly the way that this decision highlights.

Debtor-creditor relations
The St. Joe Company v. NRHA describes what happens when a creditor seizes funds that are held in trust by its debtor, who acts as an agent for a principal. The Norfolk Redevelopment and Housing Authority employed a company called Advantis to administer a contract for repair work to be done on one of NRHA’s buildings. Advantis contracted for performance of the work, and when bills came in, NRHA sent Advantis the amount of those bills, plus about 6% for Advantis’s fee; the agent then paid the contractors using those funds.

In 2009, Advantis passed along to the authority a couple of bills totaling about $115,000. NRHA sent the agent that amount (plus the 6%, of course) and about a month later, directed Advantis to go ahead and pay the contractors.

Unfortunately, fate intervened. St. Joe was one of Advantis’s creditors, and to secure the debt, St. Joe acquired a security interest in Advantis’s bank account. Between the time when NRHA sent Advantis the loot and when it authorized disbursement, St. Joe had exercised its right to vacuum money out of the account. Its sweep included the money that Advantis was holding for NRHA.

NRHA filed suit, seeking the imposition of a constructive trust upon the money in St. Joe’s hands. The local circuit court agreed and imposed the trust; St. Joe got a writ.

The justices today affirm the imposition of the trust. Following a long line of decisions, the court notes that when an agent holds funds for a creditor for a particular purpose, and the money is diverted from that purpose, the law imposes a constructive trust upon the money. That’s true whether the diversion is because of a crooked agent, or where the diversion is, as here, perfectly legitimate. St. Joe argued in vain that no trust could be imposed upon the money because it had a legal right to receive it, pursuant to the security agreement. The law doesn’t create such a distinction, the court finds today.

Still unconvinced? Okay, let’s try this hypothetical. Suppose a creditor gets a judgment against a lawyer, either for legal malpractice or for a routine debt such as unpaid rent. Could the creditor garnish the firm’s trust account? No; those funds don’t belong to the lawyer. He’s merely holding them for a specific purpose, such as for the benefit of the client. If the mere existence of a valid claim upon the money would suffice to legitimize such an execution, clients — the lawyer’s principals — would suffer, in exactly the way NRHA did here.

Contracts
There is an absolute outrage within Gerald T. Dixon, Jr., LLC v. Hassell & Folkes, PC. Hassell & Folkes is an engineering and surveying company of considerable renown in Chesapeake, where it has practiced for fifty years. Dixon hired the company to survey a parcel for construction of an office building on the city’s primary north/south artery, Battlefield Boulevard. The firm did the work and Dixon installed a concrete slab, which was to serve as the building’s foundation, planting it in the space indicated on the firm’s survey.

Shortly after construction of the building started, the owner of the parcel next door complained that the slab encroached upon its land. Normally, this would be no outrage at all; just a mistake in locating the boundary line. But in this case, the neighbor was none other than Chesapeake Pizza. I know the place well, since it’s located directly across the street from my high school; it is the legendary dean of all Chesapeake pizza joints. Encroach upon holy ground?! Why, the –

(Ahem.) Dixon sued the engineers for preparing a mistaken survey. The suit was filed 3½ years after the firm’s last work on the site. The issue in this appeal is whether the suit was based on a written contract (in which event it’s timely) or an oral contract (in which event it was filed too late).

When Dixon first consulted the engineers, the firm’s president sent to Dixon a letter that purported to outline the parties’ agreement for services to be performed. In two places, the firm’s president asked Dixon to sign an extra copy of the letter, so that “the executed copy will serve as the written agreement.”

I’m guessing that you already know what happens here: Dixon never gets around to signing the letter. Nevertheless, the parties proceed under the terms outlined in the letter, and the contract is fully performed on both sides.

In the lawsuit, the trial court sustained the firm’s plea of the statute of limitations, holding that while the letter accurately outlined the agreement, it nevertheless was not a written contract, so the three-year limitation for suing on oral contracts applied. Today a majority of the Supreme Court agrees, affirming the judgment in favor of the firm. Justice Mims’s opinion acknowledges that the parties had a meeting of minds, and that the letter was an accurate expression of that agreement. But he notes that the firm’s president specifically required Dixon’s signature before the document would become “the written agreement.” Since Dixon never complied with that requirement, what we have is an agreement, albeit not a written one.

Seizing upon the incongruity of an unwritten agreement that is unquestionably in writing (and signed by the party to be charged thereby, to boot), Justice McClanahan dissents. She begins with a quote from Corbin on Contracts to the effect that “[a] memorandum of agreement, signed by one party and acted on by both is a binding written contract.” She cites caselaw that upholds the legitimacy of contracts that are incompletely executed but otherwise fully performed. She does everything short of holding the letter in front of the majority’s nose, and asking whether it’s in writing or not.

But in the end, by a vote of 6-1, the court decides that while the letter is enforceable as a contract, it’s only enforceable for three years, not five.

Habeas corpus
The court issues an important ruling today in the field of habeas corpus, in E.C. v. Department of Juvenile Justice. The petitioner is a juvenile who reached an agreement to plead to counts of rape and breaking and entering. He was adjudicated a delinquent by the juvenile court and committed to an indeterminate period of custody. The adjudication would require him to register as a sex offender for the rest of his life.

Two years later, in 2009, the juvenile was released form custody and placed under terms of parole supervision. Six months after that, an assortment of lawyers filed a habeas-corpus petition on his behalf, contending that he had received inadequate assistance of counsel, and that the victim of the alleged rape had recanted. Six days after the petition was filed, the juvenile was released from parole supervision.

The trial court agreed with the Department of Juvenile Justice that it had no jurisdiction to order relief, since the juvenile was not in actual or constructive custody. (I use the latter term loosely, to indicate the parole supervision.) It further ruled that, assuming it did have jurisdiction, the petition was moot because the court could not grant release or remand, the only two forms of relief that Virginia’s habeas statutes allow.

Today, a majority of the Supreme Court reverses the dismissal of the habeas petition and remands the case for proceedings on the merits. The court first rules that since the juvenile was in a form of custody at the time the petition was filed, the trial court had jurisdiction. It’s well-established that once a court acquires jurisdiction, it never loses it until the case is finally adjudicated.

The majority then rules that the case is not moot merely because of the juvenile’s release. It points to the panoply of consequences that will follow the juvenile for life if relief is not awarded, and notes that DJJ should not be permitted to cut off all hope of relief by the simple expedient of releasing the juvenile as soon as a petition is filed. Despite the language of the habeas statute described above, the majority concludes that “collateral consequences of a conviction challenged in a habeas corpus proceeding may be considered in determining whether the proceeding is moot.”

Justice McClanahan is havin’ none o’ that. She agrees with the initial jurisdictional ruling, but lambastes the majority for judicial legislating by creating a new remedy where the statute doesn’t set one out. She concludes that this petition is indeed moot because the only relief the trial court is allowed to give – release or remand – is foreclosed by the fact that the juvenile is now a free man (he’s beyond 18 years old now).

In support of its conclusion, the majority opinion (written by Senior Justice Lacy) cites cases decided in federal courts and in other states. Justice McClanahan counters that federal habeas statutes are broader than Virginia’s, and may well provide for other forms of relief than the ones allowable in Virginia. As for the other jurisdictions, she runs through them and notes that most come from states that, as with the U.S. Code, provide more relief than Virginia does; the rest involve decisions where the courts never analyzed state-law remedies.

If you like jurisprudential donnybrooks, give this one a read, even if your practice area doesn’t include habeas petitions.